[2025] UGHC 217

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT BUTALEJA CRIMINAL SESSION CASE N0. 187 OF 2023**

**UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR**

#### **-Vs-**

**1. KIPROP JACOB 2. MAFABI SILVER 3. WADADA TITUS ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED**

#### **Before: HON JUSTICE LAWRENCE TWEYANZE**

### **JUDGMENT**

#### **Introduction.**

- 1. The accused persons are jointly indicted with the offence of Aggravated Robbery contrary to Sections 266 and 267 (2) of the Penal Code Act, Cap 128 (Revised Edition). It is alleged that Kiprop Jacob, Mafabi Silver, Wadada Titus and others still at large on the 19th day of September 2023 at Nakwiga New Cell in Butaleja District robbed Muhwana Malinga alias Balamu of cash Ugx 12,300,000/=, 28 bags of sugar and nineteen boxes of white star soap all valued at approximately Ugx 2,000,000/= and at or immediately before and after the time of the said robbery threatened to use a deadly weapon to wit a Peak Axe (Ensuluulu) on the said Muhwana Malinga alias Balamu. - 2. The prosecution case is that on the 18th day of September 2023 at around 0100hrs Muhwana Malinga alias Balamu (Complainant) received a call from a one Juma informing him that his shop had been broken into by unknown thieves at the time and loaded the shop items in a Wish White Car in colour and parted away with them. That police were informed and quickly responded and police officers on a patrol using motor vehicle UP

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7662 that is D/AIP Koboyi, PC Nasasira arrived with A6U7 and SP Turamyomwe E. Birema drove out to look for the said thieves.

- 3. That the said police personnel intercepted motor vehicle Reg N0. UBH 982C Wish white in colour along the road heading to Butaleja Technical School to which the police driver signaled the driver of the said Wish to stop but immediately increased speed heading to Nampologoma Trading Centre. That police decided to turn back and started pursuing the said motor vehicle, that they refused to stop and police fired bullets in the air but still they refused to stop promptly the police to shoot the tyres until they flattened. That the occupants of the said motor vehicle the said car and disappeared into darkness. That the police reach the said vehicle which they found loaded with bags of sugar, soap, coins and some one thousand notes and the said vehicle was later taken to Butaleja police station. That a week after a one Abu came claiming ownership of the said vehicle and told police that he had hired it to Wadada Titus (A3) who paid him Shs. 100,000/= on a daily. - 4. That the said Abu was arrested and he helped police to the arrest Wadada Titus and other persons that were involved in the robbery that is Kiprop Jacob (A1) and Mafabi Silver (A2) in Mbale with the help of Mbale Police.

## **The prosecution evidence**

PW10, Muhwana Malinga Balamu testified that he only knew A1 and A2 by face but not by their names. That on 18th of September 2023, he woke up very early and opened his wholesale shop called Muhwana shop in Busolwe Town Council. That when he opened the said shop, he started selling from morning up to 6pm and he left and went to Tororo to trade and he left his wife called Nahabo Harriet in the shop. That he never came back and he slept there and that his wife closed the shop at 10pm. That between 12am-1am, he received a phone call from Juma and who asked him where he was and he told him that they were breaking into his shop.

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- 5. That among the people he called included the DPC of Butaleja. That after 10 minutes after 1am, the DPC called Juma and told him that the vehicle was intercepted at Nampologoma by deflating the tyres of the said vehicle and the thieves abandoned that vehicle and they took off. That in the morning, he returned and found when they had stolen bags of sugar, 19 white star boxes and with UGX 12,300,000/= from his shop. That he went and reported to Butaleja police and he found 21 bags of Kinyara sugar, 9 boxes of soap and there was no money at the police store. That he pleaded with the police and they gave him back the 21 bags of sugar and soap but there was no money. That they gave him an acknowledgement and that they told him that they had arrested the people who admitted that they had broken into the shop. On crossexamination, he stated that he saw the accused persons who brought the police to the shop that was broken into. That the police only gave him 21 bags of sugar, 9 boxes of soap. There was no re-examination. - 6. PW11- Abu W., testified that he knew only A3, who was his client and could sometimes hire his motor-vehicle, UBH 982C, Toyota Wish. That on 5th September 2023, he hired the said motor-vehicle and they wrote a self-drive agreement and he was to use the motor-vehicle from 5th to 12th of September 2023. That when A3 took the car, he told PW11 that he was going to Bulambuli and Sironko to wire/connect the electricity for people. That after that he only gave PW11, money worth 180,000/= for 2 days instead of one for a week. That when he went, PW11 called A3 by phone to demand the money because the agreed days had not yet expired. That after the expiration of the days, PW11, called A3 and demanded for the vehicle, but A3 said he was still busy using the vehicle. That PW11, tried calling A3 but A3 was not picking his phone calls. That PW11 later received a phone call from Twaha Sowedi Nabundesi who had sold the vehicle to PW11. That Twaha called to ascertain if Abu PW11 had the vehicle, but he told him that he hired it out. That Twaha told him that he received a call from Butaleja police that the vehicle had been arrested.

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- 7. PW11, called A3 and A3 told him that the vehicle got a problem and it was arrested. That he then got the documents of the vehicle and came with the LC1 Chairperson and Defence Secretary to Butaleja Police. That he told Police that he had hired the vehicle to Wadada Titus who works at Umeme. That he was also arrested and he spent 11 days at police and later released on police bond with the directive to look for the person he hired the vehicle to and bring him. That he worked with the police and they looked for Wadada Titus who was then arrested. That the Police returned the vehicle to him as the owner. On cross-examination, PW11 stated he had known A3 since 2019 when he used to ride a motor-cycle with electrical materials, and at all times he knew A3 as an electrician. That he started hiring the vehicle to Wadada Titus since 2019 to 2021, when he got other people whom he got the car from. There was no reexamination. - 8. PW12, Detective AIP Koboyi Francis, testified that he knew the accused persons. That there were several robberies in Busolwe Town Council and Rwamboga Town Council, and he was assigned the file. That he started the investigations of the said robberies and recorded statements from the complainants Muhwana Malinga of Busolwe Town Council and, he visited the scene with the Scene of Crime Officer (SOCO) and they drew the sketch map and photographs were taken and a police report was made with the findings, that the shop had been broken into and the items had been taken from the shop which included sugar, boxes of soap and cash worth 12,300,000/=. - 9. That on the 19th September 2023, at around 2am, he received information from the DPC that there were thugs robbing and he called the driver and one police officer and they proceeded to Busolwe Trading Centre. That around Butaleja Technical Institute, they met with a motor vehicle UBH 982C, white in colour. That when they signaled the driver of the white

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vehicle to stop, the driver drove very fast and did not stop, and he drove very fast and they followed him up for about 9 kilometers to around Nampologoma, and they branched off, jumped off the vehicle, abandoned it but left the engine still running. That the DPC shot at the vehicle, and they checked the vehicle, but the people had escaped. They checked the vehicle but there were bags of sugar, boxes of soap, a Peak Axe, there was money and some coins. They had left there two mobile phones a smart phone and a button phone. There were two pairs of open shoes, one black and one brown. There was also a jean jacket and a maroon cap. They called the police, the SOCO and even the owners of the goods had been called. That the place had been scattered with coins. That they took the property to the police and recorded the items, including the things that they found in that vehicle. That they found 29 bags of sugar, and 19 boxes of soap and they recorded them in the exhibit book and an exhibit slip to that effect was made.

10. That in the morning, the first complainant, Muhwana came to police and informed police that that was his property. The exhibits were given to the complainants and they signed for them. That after one week, Abu came to police and claimed that the vehicle that was used in the robbery belonged to him, and he presented the logbook, the self – drive hire agreement in the names of Wadada Titus. The accused persons were arrested and brought to police with the help of Mbale police, and they were put at Butaleja police station, and he obtained the accuseds' statements on charge and caution and recorded their statements. PW12 testified further that they sent one pair of black and brown shoes, a maroon cap, and a white liquid for forensic check at the Government Analytical Labaratory (GAL) while comparing them with the blood samples that were extracted from all the accused persons, and a DNA Analysis Report was received. That the said report indicated that the open black shoes belonged to Mafabi Silver (A2), and the brown open shoes

were for Kiprop Jacob (A1). That there was nothing that could be associated with A3.

- 11. PW12, prayed to tender in the Peak Axe (Nsuluulu) and two mobile phones that were recovered from the vehicle and that is where they got the contacts from. All the exhibits were admitted. On cross-examination, PW12 testified that the button phone is for Mafabi Silver since there was a mobile line belonging to him. That it was discovered by the police officers of Tororo flying squad. That he does not know the owner of the smart phone because it had no battery. That he only knew the accused persons as the persons arrested in respect of this case. That there are no other suspects in this case apart from the ones who are accused. That A3 was involved because Abu told them that he hired the vehicle from him that was used in the said robbery. That according to the DNA Report, there is no any other exhibit that was found to belong to A3 apart from the fact that he had hired the vehicle. - 12. Prosecution prayed to re-open its case and bring in other witness, Wanyama David (PW13) and Opodel James Odong – SOCO (PW14) which the defence never objected.

## **Representation.**

13. At the hearing, Wanyama James Muliro, and Kakuuma Geoffrey as Senior State Attorneys appeared for the Prosecution and the Accused were represented by both Counsel Nappa Geoffrey and Obbo Alex Brian.

## **Burden and standard of proof.**

14. Since the Accused in this case pleaded not guilty, like in all criminal cases the prosecution had the burden of proving the case beyond reasonable doubt. The burden does not shift to the Accused person and the Accused



is only convicted on the strength of the prosecution case and not because of the weaknesses in the accuseds' defence, *See Festo Androa Asenua and Another vs Uganda (1998) UGSC 23*. The Accused does not have any obligation to prove his innocence.

15. Proof beyond reasonable doubt though does not mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the Accused is innocent, (see *Miller v. Minister of Pensions [1947] 2 ALL ER 372*).

## **Ingredients of the offence.**

- 16. For the accused to be convicted of Aggravated Robbery, the prosecution must prove each of the following essential ingredients beyond reasonable doubt; - *a) Theft of property belonging to another.* - *b) Use or use threat of use of violence during the theft.* - *c) Possession of a deadly weapon during the commission of the theft.* - *d) The accused participated in commission of the theft.*

# **(a) Theft of property belonging to another.**

17. The first ingredient requires proof of the fact that property belonging to the complainant was stolen. For this ingredient, there must be proof of what amounts in law to an asportation (that is carrying away) of the property of the complainant without his consent or lawful claim of right. The property stolen in this case is alleged to be cash Ugx 12,300,000/=, 28 bags of sugar and nineteen boxes of white star soap all valued at approximately Ugx 2,000,000/= property of Muhwana Malinga alias Balamu. The prosecution is expected to prove theft of the specific items alleged to have been stolen and in some situations, vague generic references to property of a similar kind will not suffice.


- 18. PW10, testified that in the morning, he returned and found when they had stolen his bags of sugar, 19 white star soap boxes, and UGX 12,300,000/=. That he went and reported to Butaleja police and he found 21 bags of Kinyara sugar, 9 boxes of soap and there was no money at the Police store. That he pleaded with the Police and they gave him back the 21 bags of sugar, soap but there was no money. That they gave him an acknowledgement and that they told him that they had arrested the people who admitted that they had broken into the shop. - 19. PW12 testified that on the 19th September 2023, at around 2am, he received information from the DPC that there are thugs who are robbing vehicles and he called the driver and one police officer and they proceeded to Busolwe. That around Butaleja Technical Institute, they met with a motor vehicle UBH 982C, white in colour. That when they signaled the driver of the white vehicle to stop, the driver drove very fast and did not stop, and he drove very fast and they followed him up for about 9 kilometers, to around Nampologoma, and they branched off, jumped off the vehicle, abandoned it but left the engine still running. That the DPC shot at the vehicle, and they checked the vehicle, but the people had escaped. They checked the vehicle and bags of sugar, boxes of soap, a Peak Axe, some paper money and some coins. - 20. Prosecution tendered in an exhibit slip showing all the items that were recovered from the motor vehicle that was used in the robbery and it was admitted and marked as PEX4. There was evidence to show that the 21 bags of Kinyara sugar, 9 boxes of soap were recovered but there was no money worth UGX 12,300,000/= ever recovered. The evidence adduced leaves no doubt in my mind that the 21 bags of Kinyara sugar, 9 boxes of soap were stolen from the shop of PW10, Muhwana Malinga Balamu and for that reason this element has been proved beyond reasonable doubt by the prosecution. I however note that there was no evidence of money worth UGX 12,300,000/= being stolen.

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## **(b) Use or use threat of use of violence during the theft against the victim or property.**

- 21. The prosecution was further required to prove that during the commission of that theft, the assailants used or threatened to use violence. For this ingredient, there must be proof of the use or threat of use of some force to overcome the actual or perceived resistance of the victim or property. In proof of this element, the Court was presented with the oral testimony of PW12, Detective AIP Koboyi Francis who testified that the accused used a Peak Axe (Nsuluulu) to break the shop and steal the property of Muhwana Malinga alias Balamu. - 22. This was corroborated by PW14- Opodel James Odong who testified that he inspected the vehicle and found, a Peak Axe (Nsuluulu), that was used to break the complainant's shop. On cross-examination by Counsel Nappa Geoffrey, PW14 testified that the vehicle was brought on the night of 18th September 2023. That in the morning of 19th September 2023, he recorded the exhibits and that very day he visited the scene of crime. That the examination was not conducted on the Peak Axe. That the Peak Axe was found in the said vehicle. That the blood samples were collected when the exhibits had been brought to police. The probable means of access against the property was by use of violence against the shop/property of the complainant. - 23. I find that the prosecution has proved beyond reasonable doubt that immediately before, during or immediately after theft of the 21 bags of Kinyara sugar, 9 boxes of soap, violence was used against the property of Muhwana Malinga alias Balamu. - **(C) Possession of a deadly weapon during the commission of the theft.** - 24. The prosecution was further required to prove that immediately before, during or immediately after the said robbery, the assailants had a deadly

Page **9** of **25** weapon in their possession. According to Section 267 (2) of the Penal Code Act, Cap 128 (Revised Edition), a deadly weapon is one which is made or adapted for shooting, stabbing or cutting and any instrument which, when used for offensive purposes, is likely to cause death. In this regard, the Court was presented with the oral testimony of PW12, Detective AIP Koboyi Francis who testified that the accused used a Peak Axe (Nsuluulu) to break the shop and steal the property of Muhwana Malinga alias Balamu. The said Peak Axe is said to have been found in the car that was used in the robbery and was tendered in Court and exhibited as PEX4b.

- 25. The Peak Axe (Nsuluulu) was recovered from the vehicle together with the stolen property in the car. Presence or possession of a Peak Axe (Nsuluulu) from the accused persons who never explained that either it was for construction or that they are builders was an oddity which is therefore only explainable in the context of the crime. It was in the possession of the assailants who were in the vehicle at the time. - 26. In any event, what is required by the law is possession of the weapon and not necessarily its use in committing the crime. By its very nature a Peak Axe (Nsuluulu) is an instrument which, when used for offensive purposes, is likely to cause death or destruction of property. I therefore find that the prosecution has proved beyond reasonable doubt that, the assailants had a deadly weapon in their possession.

## **(d) The accused persons participated in commission of the theft.**

27. The last ingredient that was required to be proved is that each of the accused participated in committing the offence with which they are indicted. This is achieved by adducing direct or circumstantial evidence, placing each of the accused at the scene of crime not as a mere spectator but active participant in the commission of the offence. The evidence implicating each of the accused must be considered separately

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considering that even though charged jointly, their criminal responsibility is individual. All the accused persons denied the offence and each raised the defence of alibi.

- 28. In defence, DW1, Kiprop Jacob gave unsworn evidence, and testified that he comes from Bukwo District, that he is an electrician working with HASO Engineering Company in Mbale City. He testified that he was told that he was in a car that was used to steal. That A3, Titus is also an electrician and that the car was for Titus at the time. That he used to see the said car at Umeme whenever he went there for work. That the vehicle is Wish and white in colour. That the Flying Squad of Mbale told him that he was in the car. That the police found him at Habrah Supermarket and took him to the car where they found A2 and Wanyama, Dison and Sam. That they took them to the Regional security block, and they asked him whether he knew A2 and A3 and he accepted. That he knew A2 as a person who used to sell him Matooke in Mbale City. That he knew A3 as an electrician. - 29. DW1, testified that he had known A3 for a period of 3 years and he had known A2 for a period of 1 year. That while at the Regional Block, they showed him a photograph of a car Toyota Wish and he was asked if he knew the car, and he said he knew it. That he told them that on the 18th September 2023, he went to Umeme yard where he found Engineers Sam, Disan and Isima, and they were talking about one of the colleagues who had died. That they said that they would go for burial of the late. That Engineer Dison gave them a double cabin and they went outside the Umeme ward and found A2 at his workplace, where he was with his wife. That he told A2 that their friend had passed away, and they said they would go together to go and burry. That they asked A3 and he said that he was at the hospital. That the place was near, and they moved there by foot, together with Engineer Disan, Sam, Isima. That they found Wadada-A3 and asked him if he would go with them to the burial and A3 refused.

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That A3 gave them the car and Wanyama (PW13) drove the car on the same day of 18th September 2023. That the burial was in a place called Magale in Namisindwa District.

- 30. That after the burial, Wanyama left them at the burial. That he left the burial on the same day, and they boarded a taxi to return. That A3 did not find the car and they tried to call Silver. That Wanyama's phone was not going through and he had disappeared with the car. That the said robbery took place that very night of 18th September 2023. That he was taken from Mbale to Tororo and he was beaten. That he was in police detention and they took samples from him for DNA testing. That he was transferred from Tororo to Butaleja. DW1 stated that he did not leave anything in the car, and that they never told him about the results of the DNA. That he was just given the brown open shoes, glass and a jacket, and he carried the jacket and he was made to hold all of them. That it was Afande Koboyi who handed to him the said items. That Afande Koboyi also made him to carry the Peak Axe. That the statements he stated he never gave them at Police. A1 denied participating in the commission of the offence and he put up the defence of alibi. - 31. DW2, Mafabi Silver gave unsworn testimony, and testified that he does not know the owner of the said property and nor does he know the shop. That he does not know the date when the said shop was broken into. That he was arrested because the car that they used to go for burial was the one that was got from Butaleja. That it was Wish, and he does not know the number plate of the car. That he does not know the owner of the vehicle but was always seen with A3, Wadada. That the car had about 5 people, including, Sam, Dison and the driver was Wanyama, the Chairman of Special vehicle owners. That they had gone to bury his former customer but he does not know the name of the deceased. That the deceased was buried in Magale in Namisindwa District. That they did not leave all of them, but they only returned four people without

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Wanyama the driver. That they boarded a taxi at about 6pm. That upon return from the burial, he went to his business. That they never found Wanyama again, and only met him again when he was arrested on 5th February 2023.

- 32. DW2, testified that he never left anything in the car. That before he was arrested, Titus had called him the next day after burial on the 19th September 2023. That Titus asked him the whereabouts of the driver Wanyama and the car. That he told Titus that Wanyama had left them at the burial and they were there up to around 6pm. That Police took blood samples from him for purposes of DNA testing. DW2, testified that he does not know about the black open shoes and he was just given them at Police, and that the shoes are not his, and they do not fit him. That he has never gone to Titus' place at all after the 18th of September 2023. - 33. DW3, Wadada Titus, on oath, testified that he is now 26 years old, a resident of Mbale City, and a worker of Umeme, that he knew why he was Court and it is because of the offence of aggravated robbery. That he knew the car in issue, Wish number UBH 928C, which belongs to Abu. That on the 18th October 2023, he got a call from Engineer Dison, and told him that his work colleague called Kutosi had died and he asked if he had a car. That his friend Kiprop Jacob called him and told him that his colleague had died and he was with A1 and A2, Dison, Wanyama and Sam. That they went to the hospital where he was and asked for the car from him, which he gave them to go for burial. That he gave them the car because he trusted Engineer Dison and Kiprop Jacob. - 34. That it was Kiprop Jacob who drove away the motor-vehicle, and it was supposed to be returned by 5pm after the burial, but they did not return the vehicle. That when they did not return, Kiprop Jacob, Silver and Dison came to the hospital at about 6pm and he got news that the man who took them for burial had left them and they do not know where he was. That

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he reported to the owner of the car who had given it to him, that the people he had given the car had not returned the car. That the next day, he tried to look for those who had gone with the car and he got Engineer Dison, who asked if he had seen Kiprop Jacob but he had not seen him, and his phone was not going through.

- 35. That at about 2pm, he went and explained to Abu, the owner of the car about the challenges of the car that it is not yet returned and he told him to calm down and that they would see the car. That on the 20th day of October 2023, he received a phone call from the owner who asked if he had the car, and told him that he got information that his car had been recovered from Butaleja, and he told him that they should go there together, but he did not escort him since he was not feeling well. That after, on the 21st October 2023, Abu called DW3 and informed him that he had been arrested and he asked who was in the car on the 18th day of October 2023, and he told him that he had given it to his colleagues he works with at Umeme. That Abu asked for some money worth UX 2,000,000/= for police bond and after getting for him the said money, Abu was released. - 36. That A1, A2 and Engineer Dison had been found in Mbale and that very day, DW3 was also arrested. That he was arrested and taken to Bukedea then Butaleja. On cross-examination, A3 stated that he was only showed the picture of the car. He was showed the police report and he said he made a statement and he signed on it. DW3 stated he had never seen the exhibits, shoes, jacket and among others. That on the 19th he was at home. He raised an alibi as his defence. There was no re-examination. - 37. To destroy those defences, the prosecution relied majorly on the DNA Analysis Report that indicated that the property that was found in the vehicle are connected to accused A1 and A2 but not A3 and other circumstantial evidence. The DNA Analysis Report was tendered in and

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marked as PEX5. Also, the evidence of PW12 who testified that they found the stolen property in the vehicle that was being driven by the accused A1 and A2. That A3 was not present at the scene.

- 38. PW12, prayed to tender in the Peak Axe (Nsuluulu), Two mobile phones that were recovered from the vehicle and that is where they got the contacts from, the black open shoes belonging to Mafabi, the brown open shoes belonging to Kiprop Jacob, and the brown Jacket, and the bottle of Uganda Waragi, the blood samples that were extracted from all the accused persons, which they sent for the DNA comparison. The said exhibits were admitted by Court. - 39. On cross-examination, PW12 testified that the button phone is for Mafabi Silver since there was a mobile line belonging to him. That it was discovered by the police officers of Tororo flying squad. That he does not know the owner of the smart phone because it had no battery. That he only knows the accused persons as the persons arrested in respect of this case. That there are no other suspects in this case apart from the ones who are accused. That A3 was involved because Abu told them that he hired the vehicle from him. That according to the DNA analysis Report, there is no any other exhibit that belongs to A3 apart from the fact that he had hired the vehicle. - 40. PW-13 Wanyama David testified that he only knew A3, Wadada Titus. That he only got to know Wadada in 2023. That in April 2023, Sam Katisha came to PW13's shop but he was not there and his neighbour called and asked where he was, and that he had some business. That he did not know the person, and when he returned from town, his brother returned and told him that there is a business of smuggled goods which were being at a good price. That the said business was for wheat flour, sugar and soap. That he was told that those things had been impounded by URA Malaba branch. That he had paid for 13 cartons of wheat flour at UGX 650,000/-,

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5 bags of sugar and 10 boxes of Kibuyu soap at UGX 400,000/= and in total he gave A3 UGX 1,800,000/=.

- 41. That after a period of about two months, A3 called PW13, that he had gotten problems and he wanted PW13 to assist him with some money, and PW13 told him he had no money to assist him. That A3 told P13 that he will see what happens, and after a period of about two months, when he was at his shop at about 9pm, police officers from Flying Squad from the Mbale Regional block came to his shop and he was told that they came to arrest him. - 42. PW13 testified that he was showed all the three accused persons and asked him if he knew them. That he told them that he only knew Wadada Titus. That after they tortured the accused and asking them if they were thieves and all of them were taken to police cells. That in the morning, they met again at the Regional block and he explained himself and he was told that he is not part of the team that was involved in the said robbery and he was released on police bond for one week to go home. That he reported again the next day, he was told that they have been busy and that Titus had run away from the hospital and that they were looking for him. - 43. That after one week, the police men from Butaleja came with the patrol car, with A1 and A2 in the vehicle, and told him that they had come to pick him and he joined them at the vehicle and he was then taken to Butaleja police for investigation. That at Butaleja, he was asked if he knew the accused persons and he said he never knew them and neither did they know him – that is to say A1 and A2. - 44. On cross-examination, by Counsel Obbo Alex, PW12 stated that he only met A1 and A2 at the Regional police. That the car that Titus used in bringing him the smuggled goods was UBK 033M, Wish. That he again

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met A3 in June 2023 when Titus had called him. That Titus had called him that he got a problem and that the car had been detained. That he only told him that he got a problem police had detained his car and he needed money to solve it. That he was arrested because of buying goods from Titus in April. That in October 2023, he made a statement and it remained with the police officer. That he never asked for money from Wadada to be released.

- 45. On cross-examination by Counsel Nappa Geoffrey, PW13 stated A1 and A2 led the Flying Squad to his shop. That he did not know A1 and A2 before the incidents. That he first dealt with Titus in April 2023. That he had not known Titus before and he only got to know him from Sam. When asked who had brought the goods to him, he said that he it was Titus. PW13 stated that he never moved with the accused persons for burial. That since April 2023, he later only came to see Titus physically, when they had come with policemen with the other two accused persons. That it is A1, A2 and A3 who led the Flying Squad to his shop, and then he was arrested for the first time. That for the second time, A1 and A2 led the police of Butaleja to his shop and that at that time, A3 had run away from police lawful custody. There was no re-examination. - 46. Court had an opportunity to look at the picture of the said motor vehicle in the phone, and it noted that the picture was taken on the 25th February 2023, Saturday 4:35pm. When Court asked PW13 to explain, he said that he thought it was in April 2023. On cross-examination by the accused A1, PW13 stated that he never moved with the accused for burial. That he knows them as neighbours. That he does not know Umeme people. On cross-examination by A3, PW13 stated he knows A3 and that he never asked for money from A3. - 47. PW14 Opodel James Odong, the SOCO a resident of Butaleja police barracks , a Police officer, Detective AIP, 30 years old, testified that he

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knew all the accused persons. That on the 19th September 2023, when the District CID officer, Detective AIP Kijaali Peter contacted him to reach the station and carry out a search of motor-vehicle UBH 928C, Wish white in colour that had been parked at Butaleja Police station. That he put on his personal protective gloves, and opened the vehicle, and found around 28 bags of sugar, 19 boxes of white star soap, and he called other police officers to assist him in offloading and then recording.

- 48. That he further inspected the vehicle and found 2 bottles of Guinness beer, 1 Glass, 1 brown Jacket, 1 smartphone, 1 button phone, 1 Maroon cap, 1 bottle of Uganda waragi bottle, 1 brown pair of open shoes, 1 black open pair of shoes, 1 Peak Axe (Nsuluulu). That there were Jakes and spanners but they were taken by the owner of the vehicle. That all the items were exhibited and an exhibit slip recorded pending the arrest of the suspects. That PW14 handed over the exhibits to the GAL, and the medical officer collected blood samples from all the accused persons. That after collecting the said samples, he filled Police form 17a to match the 3 blood samples with all the items that were recovered from the vehicle, and he submitted them to GAL Mbale collection Centre that submitted to GAL collection Centre in Wandegeya. That when the results were out, he picked them and handed them over the Investigating officer . - 49. On cross-examination by Counsel Nappa Geoffrey, PW14 testified that the vehicle was brought in the night of 18th September 2023. That on the morning of 19th September 2023, he recorded the exhibits and that very day went to the scene of crime. That he did not take any photographs of the said shop that had been broken into. That the examination was not conducted on the Peak Axe. That the Peak Axe was found in the said vehicle. That the blood samples were collected when the exhibits had been brought to police.

Page **18** of **25** ## **Submissions.**

- 50. The Senior State Attorney, Muliro James Wanyama submitted that they agreed with both Counsel for the accused to submit on only the last ingredient of participation of the accused persons. Counsel Nappa Geoffrey stated that that is the position. - 51. Muliro James Wanyama submitted that A1 and A2 are placed at the scene of crime by the DNA Analysis Report that was tendered in Court as PEX7. That for A3, evidence was led by PW11 and it was not contested, and that he hired the vehicle that was used in the commission of the offence that was being used. That the person who hired the vehicle A3, and those that are placed at the scene of crime that is A1 and A2 carried out the same transaction though in stages, A3 hired the vehicle and A1 and A2 committed the actual act of carrying out the robberies. That regardless of the role each of the parties played, all the accused had a common intention of committing the offence. - 52. That in their defence, the accused persons tried to raise an alibi, but that the accused person had been identified and placed at the scene of crime, that the plea that he was somewhere else should fail. That as far the participation of A3 is concerned, Court was informed by the owner of the vehicle that when he received information that his vehicle had been impounded at Butaleja police station, he immediately informed A3, but A3 did not take any step to find out that whether the vehicle was impounded. That he was arrested and he escaped from hospital where he had been taken, and later he was arrested in Bukedea. That that was not the conduct of an innocent person. He prayed that Court finds that the prosecution has proved its case beyond reasonable doubt and convict the accused persons.

- 53. In reply, Counsel Nappa Geoffrey for the accused submitted that as per Section 59 of the Evidence Act, there is no direct evidence pinning any of the accused persons. That PW12, Koboyi informed Court that he did not identify any of the accused persons. That it has been submitted that the DNA Analysis Report PEX7 pins only A1 and A2, that it is very clear from the record that no evidence whatsoever, pins A3 in the commission of the offence. That the motor-vehicle that tries to bring in A3, it was testified by A3 that he handed over the vehicle in question to A1 which fact is not denied. That the moment A3 explained to Court what happened to the motor-vehicle in terms of whom he had given it to and to whom he had hired, and the person is in court and not denying it puts him out of the case and he should be released. - 54. That for common intention, A3 informed Court that he only handed over the vehicle to A1 who had informed him that they were going for a burial - A1 and A2. That no evidence was led by the prosecution to show the preparation of the accused persons to include A3. That since it is A1 and A2 who kept refereeing to a one Wanyama and A3 did not make mention of any person of that nature. That this puts doubt in the prosecution case the participation of A3 in the commission of the said offence. That the evidence on file is not sufficient to convict, especially A3 in this case. There was no rejoinder.

## **Assessors' Opinion.**

55. At the closure of the case, summing up was done to the Assessors - Wahwesa John and Mary Byangango and they were required to give their opinions. They opted to give a joint opinion, and in their joint opinion, they advised Court to convict all the accused persons on grounds that the prosecution linked the accused persons A1 and A2 to the scene by the DNA Analysis Report and the circumstances. That A3

hired the vehicle that was used in the robbery, and that they see him as an accomplice in the robbery and he too be convicted.

## **Determination by Court.**

- 56. Court at this stage is required to look at the evidence as a whole and make a determination. The main contention is the participation of the accused persons in the commission of the said offence. Let me unpack the issue of Wanyama who allegedly drove and disappeared with the motor vehicle when they went for burial as A1 and A2 wanted this Honourable Court to believe as it was their narrative. It should be noted that Wanyama was only mentioned by A1 and A2 but the truth is that he was only known by A1 to whom the motor-vehicle was given. The accountability of the same vehicle of handing over back the said Motor vehicle to A3 heavily relied on him. It could not just be reporting to A3. The stories of the accused persons, in my view are to exonerate each other and only blame Wanyama who later came and destroyed their narrative. The truth is that the accused persons A1 and A2 are connected to the robbery by evidence – that is to say, they got the said motor vehicle, it was not returned and it was used in the said robbery and the DNA that was found on the items that were recovered belonged to A1 and A2. To me their narrative that it was Wanyama who drove the said moto vehicle is not feasible as it is not mentioned anywhere in their plain statement at police which was their first opportunity when their minds were still fresh. - 57. The fact is, A3 hired a motor-vehicle, he gave it to A1 and A2 and that motor-vehicle was involved in the robbery and the accused persons A1 and A2 do not deny ever using the said motor-vehicle, therefore, A1 and A2 are placed at the scene of crime by evidence but there is no evidence placing A3 at the scene of crime. Assuming that there was no DNA at all, all the accused persons were already connected to the robbery by virtue of the motor-vehicle that was used. The DNA just corroborated this piece of evidence. In any case, the accused are not supposed to prove their

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innocence, it is the prosecution to prove their guilt by destroying their defences of alibi, which to me, that duty was discharged beyond reasonable doubt against A1 and A2 but not A3.

- 58. Although A1 and A2 in their defences sought to distance themselves from the exhibits of the brown open shoes and the black open shoes from which the DNA Analysis Report connected to their samples by stating that it is the police who gave them to hold the said items and they took the photos. Court ordered that A1 and A2 put on the said shoes for observation. A1 put on the brown open shoes and Court observed that the said shoes fitted him very well, and the black open shoes, fitted in the feet of A2 very well, which led to one conclusion that the said open shoes belonged to A1 and A2 respectively. The version of A1 and A2 is not plausible at all. It was not by sheer coincidence or manipulation by the police that they were together on the 18th day of September 2023, when A3 gave A1 and A2 the motor-vehicle before the robbery and the motor-vehicle found together within hours of the robbery. The claim by A3 Wadada Titus that he just gave the said motor-vehicle to A1 Kiprop Jacob and was just arrested because he gave them the said motor-vehicle is quite a reasonable explanation as the prosecution has failed to place him at the scene of crime. - 59. Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances, often numerous, which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance. To enable a Court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable the Court to draw. An inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a

Page **22** of **25**

Court from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.

- 60. The strands of circumstantial evidence in this case are; (i) the three accused were together on the 18th day of September 2023 when A3 gave the motor-vehicle to A1 Kiprop, and A2, Mafabi Silver; (ii) A1- Kiprop Jacob drove the motor-vehicle to the said burial on the same day but A3 did not go with them; (iii) the said motor-vehicle was found with the stolen property of the complainant and the exhibits like open black and brown shoes, from which the DNA report is connected and the Peak Axe ( Nsuluulu). - 61. There is no evidence to suggest that any of the items that were recovered from the said motor-vehicle were planted by the police. The accused persons A1 and A2 could not explain the presence of the recovered stolen items in the said vehicle. A1 said that he is an electrician, A2 stated that he is a businessman dealing in selling matooke and A3 stated that he is an electrician. None of their work is ordinarily associated with the use of a Peak Axe (Nsuluulu). None of the three accused had any business in Butaleja that would require them to have a Peak Axe in their car in the night when the said robbery took place, and just a day before they were together on the 18th day of September 2023. - 62. Circumstantial evidence must, of course, be weighed with caution. Yet, when the strands of such evidence are of sufficient quantity and proper quality, these strands, as in the instant case, make up a rope that is strong enough in probative force to constitute at least substantial evidence that will justify a finding of guilt. The DNA Analysis Report in this case corroborates the circumstantial evidence to an extent that removes the possibility of alibi. The Assessors appear to have analysed the circumstantial evidence as closely enough and for that reason I, only

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agree with the joint opinion of Assessors to find the accused persons A1 and A2 guilty. However, I disagree with the joint opinion of Assessors who advised that I should also convict A3 because he hired the motor vehicle that was used in the robbery – there has to be more to clear doubt in the minds of Court. The prosecution failed to place A3 at the scene of crime and merely hiring a motor vehicle and giving to his friend A1 Kiprop for burial, the prosecution did not prove that A3 had a common intent with A1 and A2 to involve himself in the said robbery.

- 63. The only rational inference that the Court can draw from the cumulative weight of the circumstances, is that the accused persons A1 and A2 are connected in the commission of the crime but not A3. The circumstantial evidence, corroborated by the DNA report, placed A1 and A2 at the scene of crime as active participants and A3 is not placed in the context of the commission of the offence and thereby effectively disproved each of the alibis of A1 and A2, but failed to disprove the alibi of A3. - 64. I have considered the doctrine of common intention under Section 20 of The Penal Code Act Cap 128 (Revised edition). By that provision, when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence. The available evidence only points to A1 and A2 to have been in conjunction with one another to rob the complainant's shop and took bags of sugar, boxes of soap and money on the night of the 18th day of September 2023. However, there is no evidence to prove that A3 had a common intention with A1 and A2. Consequently, only A1 and A2 are deemed to have committed the offence proved by evidence to have been committed during that night of 18th-19th September 2023.

- 65. In the final result, I find the accused A1 and A2 guilty and each of them is accordingly convicted of the offence of Aggravated Robbery Contrary to Sections 266 and 267 (2) of the Penal Code Act, Cap 128 (Revised Edition). A3 is acquitted accordingly unless he is being held in custody for other lawful reasons. - 66. I have not made any order for compensation as required by Section 267 (4) of the Penal Code Act, Cap 128 (Revised Edition) because there was no evidence led to prove that the money was indeed in existence and also by the fact that the stolen property of bags of sugar, boxes of soap were handed over to the complainant who acknowledged and confirmed to have received the same and signed on the acknowledgement.

I so order.

Judgment read and signed in open Court at Butaleja this 16th day of January, 2025

**…………………………………………**

**Lawrence Tweyanze JUDGE 16/01/2025**